About the project

The Singapore Academy of Law’s Law Reform Committee examined whether there should be a right to judicial review of negative jurisdictional rulings made by arbitral tribunals in arbitrations governed by the International Arbitration Act (Chapter 143A, 2002 Revised Edition), which incorporates the UNCITRAL Model Law on International Commercial Arbitration. Under Article 16(3) of the Model Law, if there is a challenge to the jurisdiction of a tribunal and the tribunal decides that it lacks jurisdiction, the aggrieved party has no recourse to judicial review against that negative ruling. The Article was drafted in that manner as it was thought inappropriate for a court to compel the tribunal to continue with the arbitration after it had so ruled.

The Committee recommended that such a right of judicial review should be introduced for the following reasons:

(a) One of the principal purposes of international commercial arbitration is that no party should be able to bring the dispute to its national court. To distance themselves from the national courts of either party, a neutral seat of arbitration, which has little or no connection with either party or the subject matter of the dispute, may be chosen. A wrong negative jurisdictional ruling which is not capable of judicial review will, in effect, shut out access to the agreed form of resolution in that neutral seat, thereby thrusting upon parties what they intended to avoid in the first place, namely, litigation in the national court of one of the parties.

(b) Depending on the circumstances of the case, problems or injustice can arise if the tribunal wrongly makes a negative ruling.

(c) Potential claimants, for the reason stated in (a) above, will favour placing the arbitration in a seat where court review of a negative ruling is available.

(d) Although the Model Law (and therefore Article 16(3)) may be said to reflect current international consensus, nonetheless, there is a discernible lack of international consensus specifically with regard to the Model Law’s approach to negative jurisdictional rulings by arbitral tribunals.

(e) It is unfair and inconsistent to deny judicial review of negative jurisdictional rulings when judicial review of erroneous positive jurisdictional rulings is permitted under the Model Law.

Project status: Completed

• The report was published in January 2011.
• The Committee’s recommendations were implemented by the International Arbitration (Amendment) Act 2012 (No 12 of 2012), which was passed on 9 April 2012 and came into force on 1 June 2012.
• The High Court cited the report in Kingdom of Lesotho v Swissbourgh Diamond Minds (Pty) Ltd [2017] SGHC 195, [2019] 3 SLR 12 at paragraph 83.
• The report was also cited in the following works:
  • Deborah Chua, “The Current State of Alternative Dispute Resolution in Singapore”, Singapore Law Gazette (January 2013) (archived here) at footnote 7.
  • Nicholas Poon, “The Use and Abuse of Anti-arbitration Injunctions: A Way Forward for Singapore” (2013) 25 Singapore Academy of Law Journal [Sing Acad LJ] 244 at pages 254–255, paragraph 20, footnote 62.
  • Nicholas Poon, “Setting Aside Preliminary Rulings on Jurisdiction: International Research Corp plc v Lufthansa Systems Asia Pacific Pte Ltd [2014] 1 SLR 130 and PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597” (2014) 26 Sing Acad LJ 269 at pages 278–279, paragraph 16, footnote 32.

Areas of law

◾ Arbitration law

Click on the image above to view the report

Last updated 28 May 2019